Swartkops Sea Salt (Pty) Ltd v Cerebos Ltd (CA 03/2012) [2013] ZAECGHC 45; 2013 BIP 453 (ECG) (10 May 2013)

Swartkops Sea Salt (Pty) Ltd v Cerebos Ltd (CA 03/2012) [2013] ZAECGHC 45; 2013 BIP 453 (ECG) (10 May 2013)

The court found that the appellant had established both reputation in its braai salt product and a likelihood of confusion or deception among ordinary purchasers. The evidence of two consumers who were misled by the respondent's product was accepted as indicative of actual confusion. The court held that the correct test is the impression on the average consumer, not a detailed comparison of differences and similarities. The respondent's product was found to have an immediate and striking similarity to the appellant's get-up, and the likelihood of deception and confusion was established. Accordingly, the appeal was upheld and the respondent was interdicted from passing off its braai salt...

Citation
[2013] ZAECGHC 45
Parties
Appellant: Swartkops Sea Salt (Pty) Limited; Respondent: Cerebos Limited
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
10 May 2013
Case Number
CA 03/2012
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Application for Interdict and Damages Enquiry
Outcome
Appeal allowed; order of court a quo set aside and substituted with interdict and damages enquiry.
Judges
N G Beshe, D Chetty, N Dambuza
Legal Topics
Passing Off, Product Get Up, Likelihood of Confusion, Goodwill and Reputation
Delict Commercial and Corporate Passing Off Product Get Up Likelihood of Confusion Goodwill and Reputation

Case Brief

Summary, issues, holding and outcome

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Parties

Swartkops Sea Salt (Pty) Limited

Appellant

Cerebos Limited

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Application for Interdict and Damages Enquiry

Legal Issues

  1. 1 Whether the respondent's braai salt get-up is confusingly or deceptively similar to the appellant's get-up.
  2. 2 Whether there is a likelihood of deception or confusion among ordinary purchasers.
  3. 3 Whether the court a quo applied the correct test for passing off.

Ratio Decidendi

The court found that the appellant had established both reputation in its braai salt product and a likelihood of confusion or deception among ordinary purchasers. The evidence of two consumers who were misled by the respondent's product was accepted as indicative of actual confusion. The court held that the correct test is the impression on the average consumer, not a detailed comparison of differences and similarities. The respondent's product was found to have an immediate and striking similarity to the appellant's get-up, and the likelihood of deception and confusion was established. Accordingly, the appeal was upheld and the respondent was interdicted from passing off its braai salt...

Court Disposition

Appeal allowed; order of court a quo set aside and substituted with interdict and damages enquiry.

Orders

  • The respondent is interdicted and restrained from passing off its braai salt as that of the applicant or as being connected in the course of trade with the applicant, by using the get-up of its current Buffalo Braai Salt or any get-up confusingly or deceptively similar to the applicant's original orange braai salt...
  • An enquiry into damages suffered by the applicant as a result of the respondent's unlawful conduct is instituted.